C/A No. 4:18-2835-JFA-TER
Report and Recommendation
Petitioner is a federal prisoner in custody in South Carolina at FCI-Williamsburg. Petitioner was sentenced by the U.S. District Court, Southern District of Florida. He is seeking habeas relief under § 2241 and proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
On February 10, 2005, Petitioner was convicted and sentenced in the U.S. District Court, Southern District of Florida by a jury. He was found guilty of Counts 1-7. Petitioner's arguments revolve around Count 7, under 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2, essentially bank robbery with assault. Petitioner was sentenced 300 months for count 7. See U.S. v. Knighton, No. 9:03-cr-80091-DMM, ECF No. 189, judgment. Thereafter, Petitioner filed a direct appeal, which was affirmed by the Eleventh Circuit.
On October 31, 2007, Petitioner filed his first § 2255 Motion. Knighton v. U.S., No. 9:07-cv-81021-DMM, ECF No. 1. In his first § 2255 motion, Petitioner argued his counsel was ineffective in failing to argue that the court improperly sentenced him above the statutory maximum for count 7 and in failing to argue his sentence was unreasonable because the court placed too much emphasis on the sentencing guidelines.
"[D]efendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). Petitioner cannot challenge his federal conviction and sentence under § 2241, unless he can satisfy the § 2255 savings clause, which states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e); see also Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); In other words, as applied here, Petitioner's § 2241 action is barred, unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Petitioner was unsuccessful in seeking relief under § 2255 in his first petition in his sentencing court. However, "the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion." See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
Recently, the Fourth Circuit established a test for when a petitioner may meet the savings clause under § 2255 when he contests his sentence, not only his conviction. U.S. v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Section "2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect." Id. at 429.
On June 11, 2018, the Fourth Circuit denied the Petition for rehearing en banc. On June 18, 2018, the Motion to stay the mandate was denied. See docket for No. 16-6073, Fourth Circuit Court of Appeals. A petition for certiorari was filed in the United States Supreme Court on October 3, 2018.
Consideration of this issue is appropriate under § 1915 review because the § 2255 savings clause is a jurisdictional requirement and subject matter jurisdiction may be raised sua sponte. In the past, the Fourth Circuit has held that if a petitioner cannot meet the savings clause requirements then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice, 617 F.3d at 807. In Wheeler, the Fourth Circuit again held that "the savings clause is a jurisdictional provision." Wheeler, 886 F.3d at 423. Thus, an analysis of whether Petitioner meets the new four factor savings clause test created in Wheeler is set forth below.
Petitioner argues that § 2255 is inadequate and ineffective because the claims put forth in the 2241 here were "foreclosed by 11th Circuit precedent at the time of the initial 2255." (ECF No. 1 at 4). Petitioner does not clearly assert which Eleventh circuit precedent he refers to or how such precedent has since been overturned and made retroactive on collateral review. Petitioner alleges: "Because Petitioner's jury returned a "general guilty verdict" as to each count charged in the Indictment, and in light of the fact that Count Seven alleged a violation of Title 18, USC § 2113(a) and (d), the sentencing court's 25 year imprisonment sentence as to Count Seven exceeds that statutory maximum and warrants correction to correct a fundamental miscarriage of justice that is obvious." (ECF No. 1-1 at 7). Petitioner argues his 300 month sentence as to count 7 exceeds the statutory maximum for a violation of 18 U.S.C. 2113(a) & (d).
Petitioner appears to rely on U.S. v. Booker, 543 U.S. 220 (2005) arguing that at the time Petitioner was sentenced the particular statutory provision had since been interpreted by the United States Supreme Court as offending the Constitution. (ECF No. 1-1 at 6). Booker was decided one month before Petitioner's sentencing hearing. At Petitioner's sentencing hearing, the judge and the parties acknowledged Booker and its holding that the sentencing guidelines were now merely advisory in nature. See Booker, No. 9:07-cv-81021-DMM (ECF No. 22 at 7-8).
The statute under which Petitioner was sentenced was 18 U.S.C. § 2113(d), which expressly states the maximum is 25 years. The statute has not been overturned. Petitioner was sentenced to 25 years on that count. Petitioner has not alleged any retroactive substantive law change after his direct appeal and § 2255 motion to meet the second element of Wheeler.
Petitioner has not demonstrated that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition, under Wheeler.
See Platts v. O'Brien, 691 Fed. Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits."). --------
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge November 5, 2018
Florence, South Carolina
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).